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The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 = High court instead of dismissing the writ petition on withdrawal of writ, ought to have consider the same under this act = “47 ­ Non ­discrimination in Government employments. ­ (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”= The inquiry was proceeded for about 11 years, when the finding was given that the appellant is insane and the order of compulsory retirement was passed on 15th October, 2007.= The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15th October, 2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even it is presumed that the appellant became insane, as held by the Inquiry Officer, mentally illness being one of the disabilities under Section 2(i) of the Act, 1995, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.= The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer. In fact the High Court ought to have referred the matter to a Medical Board to find out whether the appellant was insane and if so found, in that case instead of dismissing the case as withdrawn, the matter should have been decided on merit by appointing an Advocate as amicus curiae. ; It is informed at the bar that in normal course the appellant would have superannuated from service on 31st July, 2012. we have no other option but to set aside the order of compulsory retirement of the appellant dated 15th October, 2007 passed by the respondents; the order dated 22nd December, 2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A.No.2784/2008 and the impugned order dated 20th April, 2010 passed by the High Court of Delhi in W.P.(C)No.2622/2010 and the case is remitted to the respondents with a direction to treat the appellant continued in the service till the date of his superannuation. The appellant shall be paid full salary minus the subsistence allowance already received for the period from the date of initiation of departmental proceeding on the ground that he was suffering from mental illness till the date of compulsory retirement. The appellant shall also be provided with full salary from the date of compulsory retirement till the date of superannuation in view of the first and second proviso to Section 47 of the Act, 1995. If the appellant has already been superannuated, he will also be entitled to full retiral benefits counting the total period in service. The benefits shall be paid to the appellant within three months, else the respondents will be liable to pay interest at the rate of 6% per annum from the date the amount was due, till the actual payment. 21. The appeal is allowed with the aforesaid observations and directions but there shall be no order as to costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40495

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4944 OF 2013
(ARISING OUT OF SLP(C) NO.26400 OF 2010)
ANIL KUMAR MAHAJAN …APPELLANT
VERUSUNION OF INDIA THROUGH SECRETARY,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS, DEPARTMENT OF PERSONNEL
AND TRAINING, NEW DELHI. AND OTHERS … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. This appeal has been preferred by the appellant against
the judgment of the Division Bench of the High Court of
Delhi dated 20th April, 2010 in W.P.(C)No.2622 of 2010.
The relevant portion of the said judgment reads as
follows:
“O R D E R
20.04.2010
After some arguments, learned counsel
for the petitioner seeks to withdraw the
petition as a finding has been given by the
respondents, that the petitioner is an
insane person and the petition has been
filed by the insane person himself and not
through the next friend.
In the circumstances, learned counselPage 2
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for the petitioner seeks to withdraw the
petition with liberty to file an
appropriate petition through the next
friend.
Dismissed as withdrawn with the liberty
prayed for.
All the pending applications are also
disposed.”
3. The aforesaid order has been challenged by the
appellant on two counts mainly:
(i) The High Court failed to decide the
question as to whether the appellant is an
insane person; and
(ii) If so, i.e. if the appellant is insane,
the High Court ought not to have allowed the
lawyer who received instructions from an insane
person to withdraw the case.
4. In this case, it is not necessary to discuss all the
facts, except the relevant one, as mentioned hereunder:
The appellant joined the Indian Administrative Service
(I.A.S.) on 12th July, 1977. He alleged that while he was
posted as an Additional Secretary­cum­Editor of State
Gazatteer, Bihar at Patna, he was placed under suspension
from 17th February, 1988 to 20th February, 1988 and by
another order dated 24th February, 1988 he was placed under
suspension till further orders. Subsequently, the order ofPage 3
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suspension was revoked on 24th February, 1990. He moved
before the Central Administrative Tribunal, Patna Bench, in
O.A.No.288/1991 seeking a direction to the respondents to
promote him to the selection grade from the date he became
entitled with all the consequential benefits. The appellant
contended that he has a clean service record, except for
the year 1985­86 for which an adverse ACR was communicated
to him by letter dated 25th February, 1989, after a lapse
of near about three years. The detailed facts related to
adverse entry, etc. were brought on record and the Tribunal
after hearing the parties, by the judgment dated 22nd June,
1992 held that it was not just and fair to act upon the
adverse entry of 1985­86 against which the appellant’s
representation is still pending and directed the
respondents to consider his case in the next DPC for
promotion to the selection grade on the basis of existing
material. The said application was accordingly disposed of
by the Tribunal.
5. It appears that another application Registration
O.A.No.238/1991 was preferred by the appellant before
the Central Administrative Tribunal, Patna Bench,
wherein on the revocation order of suspension he prayed
for a direction to the respondents to give him a post
befitting to his status with further prayer to directPage 4
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the respondents to pay his salary for the period from
February, 1990 onwards with interest and cost. The said
application was disposed of on 10th October, 1992 with a
direction to the respondents to pay the appellant salary
for the certain period with interest.
6. Subsequently, the appellant was placed under suspension
on 20th May, 1993 and was subjected to departmental
inquiry by the Member Board of Revenue and Inquiry
Officer who framed charges by Memo No. 6056 dated 22nd
June, 1993 against the appellant.
7. Appellant in his reply stated that a number of time he
was placed under suspension and proceedings were
initiated in that regard, and orders are made directing
him to be present before a Medical Board, which not only
tortured him but also his family, and also stated that
he had developed incurable ulcer, hence he expressed his
inability to be present before the inquiry.
8. It appears that one of the charges was that the
appellant while posted as Officer on Special Duty, Bihar
State Planning Council had directed Treasury Officers,
Secretariat Treasury, Patna to reject the bills of one Shri
P.K. Mishra, Development Commissioner which was an act
beyond his jurisdiction. The second charge was that whilePage 5
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submitting one of the Travelling Allowance Bills, the
appellant requested the Secretary(Personnel) to countersign
the bill. He alleged that his Controlling Officer, i.e.,
the Development Commissioner cannot countersign the bill as
a case is being pursued against him under Mental Health
Act, 1987. The third charge was that the appellant accused
the Development Commissioner of losing his mental
stability. Fourth charge was related to description of
duties written by him as per the confidential report (1985­
86) which shows that the appellant has become a victim of
imbalanced mental illness. Fifth charge was that one Shri
Bhaskar Banerjee, the then Land Reforms Commissioner has
accused the appellant of being indisciplined,
irresponsible, unstable and mentally sick.
9. The appellant filed a representation on 25th February,
2000 to the respondents seeking voluntary retirement. He
remained under suspension for a long period. When the
suspension was not revoked even after several years, the
appellant preferred representation before the higher
authorities which was rejected by the Ministry of
Personnel, Public Grievances& Pension Department of
Personnel & Training on 29th April, 2002. The representation
of the appellant seeking voluntary retirement was also
rejected on the ground that he had not qualified thePage 6
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minimum 20 years of service and thus as per the
respondents, he was not eligible for voluntary retirement.
10. After about 11 years the Inquiry Officer submitted the
report on 4th December, 2004. According to the appellant he
was not granted any opportunity of being heard and the
Inquiry Officer submitted an ex­parte report against him.
The suspension order seems to have been revoked by the
respondents with effect from 23rd October, 1998.
11. A writ petition was filed by the appellant before the
High Court; wherein a counter­affidavit was filed and the
respondents took a plea that despite the revocation of the
suspension order of the appellant, he never joined the
duties and remained absent despite repeated reminders made
by the Department. In the writ petition preferred by the
appellant, the High Court has recorded the submissions of
the appellant that he would be satisfied if the respondents
considered his request for voluntary retirement and release
him from his service. A contempt petition was also filed by
the appellant in 2006 on the ground of violation of the
order dated 9th May, 2006 passed by the Delhi High Court.
During the pendency of the writ petition and the contempt
petition, the authorities the passed impugned order dated
15th October, 2007, whereby the appellant was compulsorily
retired from service. Page 7
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12. The appellant preferred an application being
O.A.No.2784/2008 before the Central Administrative
Tribunal, Principal Bench, New Delhi wherein he challenged
the departmental proceedings. Before the Tribunal, learned
counsel for the appellant contended that though the Inquiry
Officer had returned a finding in favour of the appellant,
insofar as charge No.3 is concerned, but the disciplinary
authority without recording a note of dissent held that the
said charge as well stands proved. The Tribunal accepted
that the disciplinary authority had not recorded any note
of dissent and accepted the report of the Inquiry Officer.
The tentative view of the disciplinary authority, even
when charge No.3 stood not proved; was to punish the
appellant with the compulsory retirement. But the Tribunal
found that it was only U.P.S.C. which has returned a
finding of guilt insofar as, charge No.3 was concerned, and
the disciplinary authority has only accepted the said
finding. Confronted with the aforesaid position, learned
counsel for the appellant contended that the U.P.S.C. had
no jurisdiction whatsoever to return a finding on charge
No.3 by reversing the finding given by the Inquiry Officer,
and that it had only an advisory role to play. It was
further urged that the disciplinary authority was not bound
to accept the advice of U.P.S.C. The Tribunal went into thePage 8
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aspects of the case but held that in the context of the
facts and circumstances of the present case, there is no
need to go into the same as a positive finding has been
given by the Inquiry Officer that the appellant was totally
insane. The disciplinary authority agreed to the same and
despite the fact that charge No.3 was not proved, and while
taking the same to have not been proved, it was the opinion
of the disciplinary authority that the appellant would need
to be compulsorily retired. Therefore, the Tribunal held
that the opinion or advice of U.P.S.C. has made no
difference whatsoever in the case. Insofar as the insanity
of the appellant was concerned, it appears that the
appellant was asked to appear before the duly constituted
Medical Board on eight occasions and he refused to appear
before the Medical Board. Instead, he challenged the order
of the Inquiry Officer calling upon him to appear before
the Medical Board.
The Tribunal, further, observed that yet another
reason to hold the appellant is insane, i.e., his non­
appearance before the duly constituted Medical Board, which
would necessarily lead to an irresistible presumption that
had the appellant appeared before the Medical Board the
opinion of the Board would indeed have been that the
appellant is insane. Having found no merit, the TribunalPage 9
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dismissed the original application.
13. The appellant then preferred the writ petition being
W.P.(C)No.2622/2010 challenging the finding of the Tribunal
in the said case. The Division Bench passed the impugned
order dated 20th April, 2010, as quoted in the preceding
paragraph.
14. The SLP was preferred by the appellant in person. In
view of the severe cardio respiratory problem of the
appellant, subsequently he did not appear in person, he
engaged the counsel.
15. On hearing the parties and perusing the records, we
find that there was some problem going on between the
appellant and the authorities of the State which resulted
in creating numerous problems. Since 1988, the appellant
was suspended and for promotion and posting he had to move
before the Tribunal in the year 1990. The departmental
inquiry was initiated, wherein the allegation was made that
the appellant was mentally sick and then the allegations of
indiscipline, irresponsible and misbehaviour were made. The
inquiry was proceeded for about 11 years, when the finding
was given that the appellant is insane and the order of
compulsory retirement was passed on 15th October, 2007.
16. The Persons with disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995Page 10
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(hereinafter referred to as the ‘Act, 1995′) was enacted in
the year 1995 with the following statement of objects and
reasons:
(i) to spell out the responsibility of the
State towards the prevention of
disabilities, protection of rights,
provision of medical care, education,
training, employment and rehabilitation
of persons with disabilities;
(ii) to create barrier free environment for
persons with disabilities;
(iii) to remove any discriminaton against
persons with disabilities in the sharing
of development benefits, vis­à­vis non­
disabled persons;
(iv) to counteract any situation of the abuse
and the exploitation of persons with
disabilities;
(v) to lay down a strategy for comprehensive
development of programmes and services
and equalization of opportunities for
persons with disabilities; and
(vi) to make special provision of the
intergration of persons with
disabilities into the social
mainstream.”
Section 2(i) defines disability:
“Section 2(i) “disability” means­
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) loco motor disability;
(vi) mental retardation;
(vii) mental illness;” Page 11
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17. There is a prohibition imposed under Section 47 to
dispense with, or reduce in rank, an employee who acquires
a disability during his service, which reads as follows:
“47 ­ Non­discrimination in Government
employments. ­ (1) No establishment shall
dispense with, or reduce in rank, an employee
who acquires a disability during his service:
Provided that, if an employee, after
acquiring disability is not suitable for the
post he was holding, could be shifted to some
other post with the same pay scale and service
benefits:
Provided further that if it is not possible
to adjust the employee against any post, he
may be kept on a supernumerary post until a
suitable post is available or he attains the
age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a
person merely on the ground of his
disability:
Provided that the appropriate Government
may, having regard to the type of work carried
on in any establishment, by notification and
subject to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this
section.”
18. The appellant was appointed in the service of
respondents as an IAS officer and joined in the year 1977.
He served for 30 years till the order of his compulsory
retirement was issued on 15th October, 2007. It is not the
case of the respondents that the appellant was insane andPage 12
12
in spite of that he was appointed as an IAS Officer in
1977. Therefore, even it is presumed that the appellant
became insane, as held by the Inquiry Officer, mentally
illness being one of the disabilities under Section 2(i) of
the Act, 1995, under Section 47 it was not open to the
respondents to dispense with, or reduce in rank of the
appellant, who acquired a disability during his service. If
the appellant, after acquiring disability was not suitable
for the post he was holding, should have been shifted to
some other post with the same pay scale and service
benefits. Further, if it was not possible to adjust the
appellant against any post, the respondents ought to have
kept the appellant on a supernumerary post until a suitable
post is available or, until the appellant attained the age
of superannuation whichever was earlier.
19. In view of the aforesaid finding, we are of the view
that it was not open to the authorities to dispense with
the service of the appellant or to compulsory retire him
from service. The High Court also failed to notice the
relevant fact and without going into the merit allowed the
counsel to withdraw the writ petition merely on the basis
of the finding of Inquiry Officer. In fact the High Court
ought to have referred the matter to a Medical Board to
find out whether the appellant was insane and if so found,Page 13
13
in that case instead of dismissing the case as withdrawn,
the matter should have been decided on merit by appointing
an Advocate as amicus curiae.
20. It is informed at the bar that in normal course the
appellant would have superannuated from service on 31st
July, 2012. In that view of the matter, now there is no
question of reinstatement of the appellant though he may be
entitled for consequential benefits including arrears of
pay. Having regard to the facts and finding given above, we
have no other option but to set aside the order of
compulsory retirement of the appellant dated 15th October,
2007 passed by the respondents; the order dated 22nd
December, 2008 passed by the Central Administrative
Tribunal, Principal Bench, New Delhi in O.A.No.2784/2008
and the impugned order dated 20th April, 2010 passed by the
High Court of Delhi in W.P.(C)No.2622/2010 and the case is
remitted to the respondents with a direction to treat the
appellant continued in the service till the date of his
superannuation. The appellant shall be paid full salary
minus the subsistence allowance already received for the
period from the date of initiation of departmental
proceeding on the ground that he was suffering from mental
illness till the date of compulsory retirement. The
appellant shall also be provided with full salary from thePage 14
14
date of compulsory retirement till the date of
superannuation in view of the first and second proviso to
Section 47 of the Act, 1995. If the appellant has already
been superannuated, he will also be entitled to full
retiral benefits counting the total period in service. The
benefits shall be paid to the appellant within three
months, else the respondents will be liable to pay interest
at the rate of 6% per annum from the date the amount was
due, till the actual payment.
21. The appeal is allowed with the aforesaid observations
and directions but there shall be no order as to costs.
…..………………………………………….J.
(G.S. SINGHVI)
……..……………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 2, 2013.Page 15
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